Applying Principle to Practice, Chapter 4 — Of Constitutions, Part 1 of 2

That men mean distinct and separate things when they speak of constitutions and of governments, is evident; or why are those terms distinctly and separately used? A constitution is not the act of a government, but of a people constituting a government; and government without a constitution, is power without a right.

All power exercised over a nation, must have some beginning. It must either be delegated or assumed. There are no other sources. All delegated power is trust, and all assumed power is usurpation. Time does not alter the nature and quality of either.

In viewing this subject, the case and circumstances of America present themselves as in the beginning of a world; and our enquiry into the origin of government is shortened, by referring to the facts that have arisen in our own day. We have no occasion to roam for information into the obscure field of antiquity, nor hazard ourselves upon conjecture. We are brought at once to the point of seeing government begin, as if we had lived in the beginning of time. The real volume, not of history, but of facts, is directly before us, unmutilated by contrivance, or the errors of tradition.

I will here concisely state the commencement of the American constitutions; by which the difference between constitutions and governments will sufficiently appear.

It may not appear improper to remind the reader that the United States of America consist of thirteen separate states, each of which established a government for itself, after the declaration of independence, done the 4th of July, 1776. Each state acted independently of the rest, in forming its governments; but the same general principle pervades the whole. When the several state governments were formed, they proceeded to form the federal government, that acts over the whole in all matters which concern the interest of the whole, or which relate to the intercourse of the several states with each other, or with foreign nations. I will begin with giving an instance from one of the state governments (that of Pennsylvania) and then proceed to the federal government.

The state of Pennsylvania, though nearly of the same extent of territory as England, was then divided into only twelve counties. Each of those counties had elected a committee at the commencement of the dispute with the English government; and as the city of Philadelphia, which also had its committee, was the most central for intelligence, it became the center of communication to the several country committees. When it became necessary to proceed to the formation of a government, the committee of Philadelphia proposed a conference of all the committees, to be held in that city, and which met the latter end of July, 1776.

Though these committees had been duly elected by the people, they were not elected expressly for the purpose, nor invested with the authority of forming a constitution; and as they could not, consistently with the American idea of rights, assume such a power, they could only confer upon the matter, and put it into a train of operation. The conferees, therefore, did no more than state the case, and recommend to the several counties to elect six representatives for each county, to meet in convention at Philadelphia, with powers to form a constitution, and propose it for public consideration.

This convention, of which Benjamin Franklin was president, having met and deliberated, and agreed upon a constitution, they next ordered it to be published, not as a thing established, but for the consideration of the whole people, their approbation or rejection, and then adjourned to a stated time. When the time of adjournment was expired, the convention re-assembled; and as the general opinion of the people in approbation of it was then known, the constitution was signed, sealed, and proclaimed on the authority of the people and the original instrument deposited as a public record. The convention then appointed a day for the general election of the representatives who were to compose the government, and the time it should commence; and having done this they dissolved, and returned to their several homes and occupations.

In this constitution were laid down, first, a declaration of rights; then followed the form which the government should have, and the powers it should possess — the authority of the courts of judicature, and of juries — the manner in which elections should be conducted, and the proportion of representatives to the number of electors — the time which each succeeding assembly should continue, which was one year — the mode of levying, and of accounting for the expenditure, of public money — of appointing public officers, etc., etc., etc.

No article of this constitution could be altered or infringed at the discretion of the government that was to ensue. It was to that government a law. But as it would have been unwise to preclude the benefit of experience, and in order also to prevent the accumulation of errors, if any should be found, and to preserve an unison of government with the circumstances of the state at all times, the constitution provided that, at the expiration of every seven years, a convention should be elected, for the express purpose of revising the constitution, and making alterations, additions, or abolitions therein, if any such should be found necessary.

Here we see a regular process — a government issuing out of a constitution, formed by the people in their original character; and that constitution serving, not only as an authority, but as a law of control to the government. It was the political bible of the state. Scarcely a family was without it. Every member of the government had a copy; and nothing was more common, when any debate arose on the principle of a bill, or on the extent of any species of authority, than for the members to take the printed constitution out of their pocket, and read the chapter with which such matter in debate was connected.

Having thus given an instance from one of the states, I will show the proceedings by which the federal constitution of the United States arose and was formed.

Congress, at its two first meetings, in September 1774, and May 1775, was nothing more than a deputation from the legislatures of the several provinces, afterwards states; and had no other authority than what arose from common consent, and the necessity of its acting as a public body. In everything which related to the internal affairs of America, congress went no further than to issue recommendations to the several provincial assemblies, who at discretion adopted them or not. Nothing on the part of congress was compulsive; yet, in this situation, it was more faithfully and affectionately obeyed than was any government in Europe. This instance, like that of the national assembly in France, sufficiently shows, that the strength of government does not consist in any thing itself, but in the attachment of a nation, and the interest which a people feel in supporting it. When this is lost, government is but a child in power; and though, like the old government in France, it may harass individuals for a while, it but facilitates its own fall.

After the declaration of independence, it became consistent with the principle on which representative government is founded, that the authority of congress should be defined and established. Whether that authority should be more or less than congress then discretionarily exercised was not the question. It was merely the rectitude of the measure.

For this purpose, the act, called the act of confederation (which was a sort of imperfect federal constitution), was proposed, and, after long deliberation, was concluded in the year 1781. It was not the act of congress, because it is repugnant to the principles of representative government that a body should give power to itself. Congress first informed the several states, of the powers which it conceived were necessary to be invested in the union, to enable it to perform the duties and services required from it; and the states severally agreed with each other, and concentrated in congress those powers.

It may not be improper to observe that in both those instances (the one of Pennsylvania, and the other of the United States), there is no such thing as the idea of a compact between the people on one side, and the government on the other. The compact was that of the people with each other, to produce and constitute a government. To suppose that any government can be a party in a compact with the whole people, is to suppose it to have existence before it can have a right to exist. The only instance in which a compact can take place between the people and those who exercise the government, is, that the people shall pay them, while they choose to employ them.

Government is not a trade which any man, or any body of men, has a right to set up and exercise for his own emolument, but is altogether a trust, in right of those by whom that trust is delegated, and by whom it is always resumeable. It has of itself no rights; they are altogether duties.

Having thus given two instances of the original formation of a constitution, I will show the manner in which both have been changed since their first establishment.

The powers vested in the governments of the several states, by the state constitutions, were found, upon experience, to be too great; and those vested in the federal government, by the act of confederation, too little. The defect was not in the principle, but in the distribution of power.

Numerous publications, in pamphlets and in the newspapers, appeared, on the propriety and necessity of new modelling the federal government. After some time of public discussion, carried on through the channel of the press, and in conversations, the state of Virginia, experiencing some inconvenience with respect to commerce, proposed holding a continental conference; in consequence of which, a deputation from five or six state assemblies met at Annapolis, in Maryland, in 1786. This meeting, not conceiving itself sufficiently authorised to go into the business of a reform, did no more than state their general opinions of the propriety of the measure, and recommend that a convention of all the states should be held the year following.

The convention met at Philadelphia in May, 1787, of which General Washington was elected president. He was not at that time connected with any of the state governments, or with congress. He delivered up his commission when the war ended, and since then had lived a private citizen.

The convention went deeply into all the subjects; and having, after a variety of debate and investigation, agreed among themselves upon the several parts of a federal constitution, the next question was, the manner of giving it authority and practice.

For this purpose they did not, like a cabal of courtiers, send for a Dutch Stadtholder, or a German Elector; but they referred the whole matter to the sense and interest of the country.

They first directed that the proposed constitution should be published. Secondly, that each state should elect a convention, expressly for the purpose of taking it into consideration, and of ratifying or rejecting it; and that as soon as the approbation and ratification of any nine states should be given, that those states shall proceed to the election of their proportion of members to the new federal government; and that the operation of it should then begin, and the former federal government cease.

The several states proceeded accordingly to elect their conventions. Some of those conventions ratified the constitution by very large majorities, and two or three unanimously. In others there were much debate and division of opinion. In the Massachusetts convention, which met at Boston, the majority was not above nineteen or twenty, in about three hundred members; but such is the nature of representative government, that it quietly decides all matters by majority. After the debate in the Massachusetts convention was closed, and the vote taken, the objecting members rose and declared, "That though they had argued and voted against it, because certain parts appeared to them in a different light to what they appeared to other members; yet, as the vote had decided in favour of the constitution as proposed, they should give it the same practical support as if they had for it."

As soon as nine states had concurred (and the rest followed in the order their conventions were elected), the old fabric of the federal government was taken down, and the new one erected, of which General Washington is president. — In this place I cannot help remarking, that the character and services of this gentleman are sufficient to put all those men called kings to shame. While they are receiving from the sweat and labours of mankind, a prodigality of pay, to which neither their abilities nor their services can entitle them, he is rendering every service in his power, and refusing every pecuniary reward. He accepted no pay as commander-in-chief; he accepts none as president of the United States.

After the new federal constitution was established, the state of Pennsylvania, conceiving that some parts of its own constitution required to be altered, elected a convention for that purpose. The proposed alterations were published, and the people concurring therein, they were established.

In forming those constitutions, or in altering them, little or no inconvenience took place. The ordinary course of things was not interrupted, and the advantages have been much. It is always the interest of a far greater number of people in a nation to have things right, than to let them remain wrong; and when public matters are open to debate, and the public judgment free, it will not decide wrong, unless it decides too hastily.

In the two instances of changing the constitutions, the governments then in being were not actors either way. Government has no right to make itself a party in any debate respecting the principles or modes of forming, or of changing, constitutions. It is not for the benefit of those who exercise the powers of government that constitutions, and the governments issuing from them, are established. In all those matters the right of judging and acting are in those who pay, and not in those who receive.

A constitution is the property of a nation, and not of those who exercise the government. All the constitutions of America are declared to be established on the authority of the people. In France, the word nation is used instead of the people; but in both cases, a constitution is a thing antecedent to the government, and always distinct there from.

In England it is not difficult to perceive that everything has a constitution, except the nation. Every society and association that is established, first agreed upon a number of original articles, digested into form, which are its constitution. It then appointed its officers, whose powers and authorities are described in that constitution, and the government of that society then commenced. Those officers, by whatever name they are called, have no authority to add to, alter, or abridge the original articles. It is only to the constituting power that this right belongs.

From the want of understanding the difference between a constitution and a government, Dr. Johnson, and all writers of his description, have always bewildered themselves. They could not but perceive, that there must necessarily be a controlling power existing somewhere, and they placed this power in the discretion of the persons exercising the government, instead of placing it in a constitution formed by the nation. When it is in a constitution, it has the nation for its support, and the natural and the political controlling powers are together. The laws which are enacted by governments, control men only as individuals, but the nation, through its constitution, controls the whole government, and has a natural ability to do so. The final controlling power, therefore, and the original constituting power, are one and the same power.

Dr. Johnson could not have advanced such a position in any country where there was a constitution; and he is himself an evidence that no such thing as a constitution exists in England. But it may be put as a question, not improper to be investigated, that if a constitution does not exist, how came the idea of its existence so generally established?

In order to decide this question, it is necessary to consider a constitution in both its cases — First, as creating a government and giving it powers. Secondly, as regulating and restraining the powers so given.

If we begin with William of Normandy, we find that the government of England was originally a tyranny, founded on an invasion and conquest of the country. This being admitted, it will then appear, that the exertion of the nation, at different periods, to abate that tyranny, and render it less intolerable, has been credited for a constitution.

Magna Charta, as it was called (it is now like an almanack of the same date), was no more than compelling the government to renounce a part of its assumptions. It did not create and give powers to government in a manner a constitution does; but was, as far as it went, of the nature of a re-conquest, and not a constitution; for could the nation have totally expelled the usurpation, as France has done its despotism, it would then have had a constitution to form.

The history of the Edwards and the Henries, and up to the commencement of the Stuarts, exhibits as many instances of tyranny as could be acted within the limits to which the nation had restricted it. The Stuarts endeavoured to pass those limits, and their fate is well known. In all those instances we see nothing of a constitution, but only of restrictions on assumed power.

After this, another William, descended from the same stock, and claiming from the same origin, gained possession; and of the two evils, James and William, the nation preferred what it thought the least; since, from circumstances, it must take one. The act, called the Bill of Rights, comes here into view. What is it, but a bargain, which the parts of the government made with each other to divide powers, profits, and privileges? You shall have so much, and I will have the rest; and with respect to the nation, it said, for your share, YOU shall have the right of petitioning. This being the case, the bill of rights is more properly a bill of wrongs, and of insult. As to what is called the convention parliament, it was a thing that made itself, and then made the authority by which it acted. A few persons got together, and called themselves by that name. Several of them had never been elected, and none of them for the purpose.

From the time of William a species of government arose, issuing out of this coalition bill of rights; and more so, since the corruption introduced at the Hanover succession by the agency of Walpole; that can be described by no other name than a despotic legislation. Though the parts may embarrass each other, the whole has no bounds; and the only right it acknowledges out of itself, is the right of petitioning. Where then is the constitution either that gives or restrains power?

It is not because a part of the government is elective, that makes it less a despotism, if the persons so elected possess afterwards, as a parliament, unlimited powers. Election, in this case, becomes separated from representation, and the candidates are candidates for despotism.

I cannot believe that any nation, reasoning on its own rights, would have thought of calling these things a constitution, if the cry of constitution had not been set up by the government. It has got into circulation like the words bore and quoz [quiz], by being chalked up in the speeches of parliament, as those words were on window shutters and doorposts; but whatever the constitution may be in other respects, it has undoubtedly been the most productive machine of taxation that was ever invented. The taxes in France, under the new constitution, are not quite thirteen shillings per head, [NOTE] and the taxes in England, under what is called its present constitution, are forty-eight shillings and sixpence per head- men, women, and children- amounting to nearly seventeen millions sterling, besides the expense of collecting, which is upwards of a million more.

In a country like England, where the whole of the civil Government is executed by the people of every town and county, by means of parish officers, magistrates, quarterly sessions, juries, and assize; without any trouble to what is called the government or any other expense to the revenue than the salary of the judges, it is astonishing how such a mass of taxes can be employed. Not even the internal defence of the country is paid out of the revenue. On all occasions, whether real or contrived, recourse is continually had to new loans and new taxes. No wonder, then, that a machine of government so advantageous to the advocates of a court, should be so triumphantly extolled! No wonder, that St. James's or St. Stephen's should echo with the continual cry of constitution; no wonder, that the French revolution should be reprobated, and the res-publica treated with reproach! The red book of England, like the red book of France, will explain the reason. [NOTE]

I will now, by way of relaxation, turn a thought or two to Mr. Burke. I ask his pardon for neglecting him so long.

"America," says he (in his speech on the Canada Constitution bill), "never dreamed of such absurd doctrine as the Rights of Man."

Mr. Burke is such a bold presumer, and advances his assertions and his premises with such a deficiency of judgment, that, without troubling ourselves about principles of philosophy or politics, the mere logical conclusions they produce, are ridiculous. For instance,

If governments, as Mr. Burke asserts, are not founded on the Rights of MAN, and are founded on any rights at all, they consequently must be founded on the right of something that is not man. What then is that something?

Generally speaking, we know of no other creatures that inhabit the earth than man and beast; and in all cases, where only two things offer themselves, and one must be admitted, a negation proved on any one, amounts to an affirmative on the other; and therefore, Mr. Burke, by proving against the Rights of Man, proves in behalf of the beast; and consequently, proves that government is a beast; and as difficult things sometimes explain each other, we now see the origin of keeping wild beasts in the Tower; for they certainly can be of no other use than to show the origin of the government. They are in the place of a constitution. O John Bull, what honours thou hast lost by not being a wild beast. Thou mightest, on Mr. Burke's system, have been in the Tower for life.

If Mr. Burke's arguments have not weight enough to keep one serious, the fault is less mine than his; and as I am willing to make an apology to the reader for the liberty I have taken, I hope Mr. Burke will also make his for giving the cause.

Having thus paid Mr. Burke the compliment of remembering him, I return to the subject.

From the want of a constitution in England to restrain and regulate the wild impulse of power, many of the laws are irrational and tyrannical, and the administration of them vague and problematical.

The attention of the government of England (for I rather choose to call it by this name than the English government) appears, since its political connection with Germany, to have been so completely engrossed and absorbed by foreign affairs, and the means of raising taxes, that it seems to exist for no other purposes. Domestic concerns are neglected; and with respect to regular law, there is scarcely such a thing.

Almost every case must now be determined by some precedent, be that precedent good or bad, or whether it properly applies or not; and the practice is become so general as to suggest a suspicion, that it proceeds from a deeper policy than at first sight appears.

Since the revolution of America, and more so since that of France, this preaching up the doctrines of precedents, drawn from times and circumstances antecedent to those events, has been the studied practice of the English government. The generality of those precedents are founded on principles and opinions, the reverse of what they ought; and the greater distance of time they are drawn from, the more they are to be suspected. But by associating those precedents with a superstitious reverence for ancient things, as monks show relics and call them holy, the generality of mankind are deceived into the design. Governments now act as if they were afraid to awaken a single reflection in man. They are softly leading him to the sepulchre of precedents, to deaden his faculties and call attention from the scene of revolutions. They feel that he is arriving at knowledge faster than they wish, and their policy of precedents is the barometer of their fears. This political popery, like the ecclesiastical popery of old, has had its day, and is hastening to its exit. The ragged relic and the antiquated precedent, the monk and the monarch, will moulder together.

Government by precedent, without any regard to the principle of the precedent, is one of the vilest systems that can be set up. In numerous instances, the precedent ought to operate as a warning, and not as an example, and requires to be shunned instead of imitated; but instead of this, precedents are taken in the lump, and put at once for constitution and for law.

Either the doctrine of precedents is policy to keep a man in a state of ignorance, or it is a practical confession that wisdom degenerates in governments as governments increase in age, and can only hobble along by the stilts and crutches of precedents. How is it that the same persons who would proudly be thought wiser than their predecessors, appear at the same time only as the ghosts of departed wisdom? How strangely is antiquity treated! To some purposes it is spoken of as the times of darkness and ignorance, and to answer others, it is put for the light of the world.

If the doctrine of precedents is to be followed, the expenses of government need not continue the same. Why pay men extravagantly, who have but little to do? If everything that can happen is already in precedent, legislation is at an end, and precedent, like a dictionary, determines every case. Either, therefore, government has arrived at its dotage, and requires to be renovated, or all the occasions for exercising its wisdom have occurred.

We now see all over Europe, and particularly in England, the curious phenomenon of a nation looking one way, and the government the other- the one forward and the other backward. If governments are to go on by precedent, while nations go on by improvement, they must at last come to a final separation; and the sooner, and the more civilly they determine this point, the better. [NOTE]

Having thus spoken of constitutions generally, as things distinct from actual governments, let us proceed to consider the parts of which a constitution is composed.

Opinions differ more on this subject than with respect to the whole. That a nation ought to have a constitution, as a rule for the conduct of its government, is a simple question in which all men, not directly courtiers, will agree. It is only on the component parts that questions and opinions multiply.

But this difficulty, like every other, will diminish when put into a train of being rightly understood.

The first thing is, that a nation has a right to establish a constitution.

Whether it exercises this right in the most judicious manner at first is quite another case. It exercises it agreeably to the judgment it possesses; and by continuing to do so, all errors will at last be exploded.

When this right is established in a nation, there is no fear that it will be employed to its own injury. A nation can have no interest in being wrong.

Though all the constitutions of America are on one general principle, yet no two of them are exactly alike in their component parts, or in the distribution of the powers which they give to the actual governments. Some are more, and others less complex.

In forming a constitution, it is first necessary to consider what are the ends for which government is necessary? Secondly, what are the best means, and the least expensive, for accomplishing those ends?

Government is nothing more than a national association; and the object of this association is the good of all, as well individually as collectively. Every man wishes to pursue his occupation, and to enjoy the fruits of his labours and the produce of his property in peace and safety, and with the least possible expense. When these things are accomplished, all the objects for which government ought to be established are answered.

It has been customary to consider government under three distinct general heads. The legislative, the executive, and the judicial.